National Disability Insurance Agency v SSBV by his Litigation Guardian

1. The appeal be allowed.
2. Order 2 of the orders made by the Court on 22 June 2018 be set aside.
3. The cross-appeal be allowed.
4. The appellant pay the first respondent's costs of the appeal and the cross-appeal, as agreed or assessed.
5. Pursuant to s 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth), on the ground specified in s 37AG(1)(a), all references in the file and reasons to the first respondent by name are to be replaced with the pseudonym 'SSBV', and references to his guardian's name are to be removed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 These reasons for judgment relate to orders made by the Court on 12 November 2018. 2 The appeal and cross-appeal are from orders made by the Court on 22 June 2018. 3 The parties are agreed that the primary judge erred when he stated in [4] of his Honour's reasons for judgment, which is reported as SSBV by his Litigation Guardian v National Disability Insurance Agency [2018] FCA 1021, that SSBV made an application under s 48 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) to have his plan under the relevant legislative scheme reviewed. A similar erroneous reference to s 48 of the Act appears in Order 2 of the Court's orders dated 22 June 2018, by which the matter was remitted to the Chief Executive Officer of the appellant agency (the Agency). 4 The Court agrees that these references are erroneous and the appeal should accordingly be allowed. The decision the subject of the appeal to the Administrative Appeals Tribunal (AAT) under s 103 of the Act was the decision of a delegate on an internal review under s 100 of the Act in relation to a decision under s 33(2) of the Act concerning the statement of participant supports in the 2017 plan relating to the first respondent, and not an application under s 48. 5 After the matter was raised by the Full Court, the Court was informed from the bar table that a new plan was now in place, however, the details were scant and not developed. After several adjournments, the parties handed up competing proposed orders which would dispose of both the appeal and the cross-appeal. 6 The first respondent sought an additional order which, as we read it, attempted to do three things. (a) First, to identify the statutory basis for the Agency's reviewable decision, and the AAT's merits review, and to make it clear that s 48 of the Act was not engaged. We have described that statutory basis in [4] above. There was no need for any order, declaratory or otherwise, to that effect, as we have clarified this matter in the Court's reasons, and it is the basis on which we have accepted that it is appropriate to set aside Order 2 made by the primary judge on 22 June 2018. (b) Second, to provide for the remitter of the matter for reconsideration by the Agency, with a direction that the decision be re-made in accordance with the findings made by the AAT. As we explain below, we did not consider this order was appropriate because there is an insufficient evidentiary basis before this Court demonstrating the utility of requiring the Agency to reconsider what we will call the "2017 plan": that is, the plan which was the subject of the decision under s 33(2) of the Act. (c) Third, to make a declaratory order to the effect that the fact the 2017 plan had a "review date" of 30 October 2017 did not deprive the AAT's merits review of utility, even if that review date had passed. We did not consider any such declaratory order was appropriate, again because the utility of any continuing merits review before the AAT about the 2017 plan was not apparent on the evidence before the Court. Further, the declaration as proposed had a hypothetical aspect to it. 7 One of the several unsatisfactory aspects about this appeal is the absence of evidence about what, if any, plan is in effect for SSBV. This was a critical matter to understanding the utility of making the kinds of orders sought by SSBV. 8 There was no evidence before this Court about whether the undertakings given to the AAT by the Agency, which formed the basis for the AAT deciding it did not need to set aside the reviewable decision, had been complied with. There was no evidence before this Court about whether a new plan (or plans) had been made for SSBV, perhaps after an exercise of the CEO's "own motion" review power in s 48(4) of the Act. These matters were, it appears, addressed to some extent in an affidavit which the Agency sought to read before the primary judge, when his Honour enquired about what the practical situation was for SSBV at the time of the hearing before him. Ultimately his Honour refused the Agency leave to read that affidavit. The Agency originally included a ground of appeal about this refusal of leave in its Notice of Appeal, but later abandoned that ground. 9 Nor did the Agency seek leave to adduce fresh evidence on this appeal, so as to apprise the Court (and perhaps SSBV himself) of the current situation in terms of the approval of a plan for SSBV under s 37 of the Act. 10 Accordingly, the Court did not consider it was appropriate to make the kind of orders sought by SSVB, all of which assumed or required some utility either in the AAT's merits review process, or in a further reconsideration by the Agency. 11 Nevertheless, there is only one way to read the findings of the AAT, as the Agency accepted. The AAT found (at [60]-[63] of its reasons): 60. As to the level of support which should have been provided however, in general terms, on the evidence before me, I agree with the position advanced on behalf of the applicant, and I also note the position now taken by the respondent is broadly consistent with it. In particular, it is clear that since the expiry of the 2015 plan, the applicant has continued to need intensive one-on-one support of the kind previously provided to him and in the order of at least 15 hours per week. Unfortunately, it appears that he has regressed in the absence of that support, which has been a significant setback for him. It is clear that the withdrawal of the support previously being provided to him and which was enormously beneficial, has undone some of the positive effects of that support, such that some of the investment represented by that support has been thrown away, because the gains made as a result of it were not built upon or consolidated. 61. I note since the withdrawal of those supports, the applicant has had further engagement with the criminal justice system and is now at risk of being detained in the Don Dale detention centre. It is impossible to say what role the withdrawal of the supports previously being provided have played in this, but it is clear that the withdrawal of supports has had a negative impact on the applicant, and increased the functional impact of his disabilities on him. The withdrawal of those supports may well have the consequence that it will be much harder to engage the applicant with supports once again than it would have been to keep him engaged, with ongoing consequences for the applicant himself, his family and the broader community. 62. The applicant is extremely fortunate that Ms C has, to some degree, on an unpaid basis, stepped into the breach and attempted from her own personal resources to fill the gap left by the withdrawal of appropriate support under the NDIS. I have no doubt that if she had not done this, the applicant would be in an even worse position now than he is currently. However, as she made clear in her evidence, the current situation whereby she is providing semi-professional support to the applicant out of her own personal resources whilst attempting to work fulltime is not sustainable, and it is imperative that appropriate paid support be restored to the applicant as soon as possible. Based on the assurances given by the respondent, I trust that this will occur in the form of a new plan for the applicant which will come into effect by the end of this month, and hopefully lead to the applicant re-engaging with appropriate paid supports. 12 That being the case, it might be inferred that the Agency has, in any review of SSBV's plans, acted in accordance with these findings and the undertakings it gave to the AAT. Precisely how, or if, it has done so in terms of which plan is in effect for SSBV remains a matter about which there is no evidence. The Court did not consider any orders could be made which would have the effect of requiring the AAT to conduct any further merits review, nor requiring the Agency to take any particular action in relation to any participant plan for SSBV, nor of making any form of declaratory orders touching on these matters. 13 Accordingly, orders were made on 12 November 2018 as set out above. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Griffiths, Mortimer and Wheelahan.